Excerpt:.....to keep away from external influences - statement made by co-accused about finding of poison bottle inadmissible - held, appellant cannot be convicted under murder and only liable under section 328. - - her family owned property and 'panchayatdars' decided that she and manjappa should enjoy it in separate portions. 1 might help himself to them, sent eranna to put them away in a safe place. next morning he heard that eranna was dead, and taking the poison bottle with him from the poultry pen in which he had hidden it, he returned to mythadi and gave it to his grand-mother asking her to keep it safe. the learned magistrate may have acted with the best of intentions to obviate any criticism-sometimes levelled at confessions that the police officer in the back ground..........of p. w. 14 where he stayed that night. next morning he heard that eranna was dead, and taking the poison bottle with him from the poultry pen in which he had hidden it, he returned to mythadi and gave it to his grand-mother asking her to keep it safe. he informed her and his lather of eranna's death. the most difficult feature of this confession is this youth's assumption of full responsibility for the poisoning. the confession concludes with these words:'i did this act on my own accord. neitherfather nor grand-mother were responsible forwhat i did.'both in the committing magistrate's court and in the sessions court. a. 1 went back completely on this confession, and wholly denied having entered his house at all that morning and having put any poison into this curry or that he took back.....

Judgment:

Mack, J.

1. Appellant, a youth aged 20, has been found guilty under Section 302, I. P. C., of the murder of his cousin Eranna aged about 12 by putting arsenic poison into some cooked curry with the intention of doing away with Eranna's family, particularly his father P. W. 8. Eranna alone died. P. W. 8 and others, who partook of this curry, after much purging and vomitting recovered. Appellant has been sentenced to transportation for life. Chennamma A. 2, an old woman, the mother of the second wife of the appellant's father Chennappa, was also charged with this murder along with the appellant but acquitted.

2. The family back-ground, and the motive alleged, though seemingly involved, is briefly this. Appellant's father Chennappa had two wives. Ho was the son by the first wife, who died. Then Chennappa married the daughter of A. 2. The deceased boy's father Narasagowda. (P. W. 8) Chennappa and Giriappa (P. W. 12) were brothers. Estrangement between P. W. 8 and Chennappa originated some years ago in A. 2 objecting to her son Manjappa marrying Borarnma (P. W. 16) the daughter of P. W, 8. Incensed by Manjappa marrying this girl in defiance of her wishes, A. 2 had nothing further to do with him. Her family owned property and 'panchayatdars' decided that she and Manjappa should enjoy it in separate portions. Manjappa died in 1948 leavinga small daughter Puttamma. Revenue registration in the village was effected of Manjappa's [family property in this child's name with her mother P. W. 16 and her father's mother A. 2 as joint enjoyers. P. W. 16 appealed to the District Commissioner of Coorg, who eliminated A. 2 who then filed a suit in the Court of the District Munsif, Virajpet to assert her claims, This was dismissed shortly before this alleged offence. In this dispute P. W. 8 naturally supported the claim of his grand-daughter, whereas his brother Chennappa supported his mother-in-law. According to the evidence of P. W. 16, A. 1 left his father's house after a quarrel with his step mother but there was a reconciliation. There is some evidence to show that A. 2 at one time thought of arranging a marriage between A. 1 and the child Puttamma, which would consolidate the property in one family again. However, this may be for some time before the offence, A. 1, as is not disputed, was living quite amicably with his father and stepmother.

3. The brothers P. W. 8 and Chennappa lived in strictly separate portions of their family house in Kannangaja on very strained terms. It is in evidence that there was a common loft over the whole of the house to which there was only access originally from a ladder in P. W. 8's kitchen. In view of strained feelings, Chennappa provided a separate ladder for his family to reach this common loft by a ladder from one of his rooms. It was, however, possible for any one in Chennappa's house to enter his brother's kitchen through the loft and 'vice versa'. The only occupants of Chennappa's portion of the house were Chennappa himself, his second wife (A. 2's daughter) and his son A. 1. On the date of the poisoning which was 31-7-1949 they had locked up their part of the house and gone some days previously to the house of A. 2 who lived in a separate house of her own in a village Mythadi 3 or 4 miles away to assist her in her cultivation.

4. The prosecution case is that sometime after 9 a.m. that morning A. 1 came to this house, made his way through the loft into P. W. 8's kitchen and poured out of a bottle a mixture of arsenic poison into a 'chatti' of cooked fish and potato curry which was hanging on the wall of the kitchen near a pot of cooked rice after P. W. 8 and all the inmates had locked up their part of the house and gone to the fields.

The inmates of the house were P. W. 8, his second wife (P. W. 9) by whom he had a baby son and three sons including the deceased Eranna by his deceased first wife. The other two sons had gone out to work that day and have not appeared before the Court. P. W. 9 had cooked rice and this curry that morning of which she, P. W. 8 and Erranna partook a little and then P. W. 8 went to the field of P. W, 4 to help in some ploughing.

P. W. 9 and Eranna taking with them the little child, went to their fields for transplanting. P. W. 9 was joined there by another woman P. W. 15 who is the mother of P. W. 14. P. W. 8 later joined them after finishing his ploughing. Another witness (P. W. 10) a friend on some business, who came to see P. W. 3 joined them in transplantation. They saw A. 1 going in the direction of his house carrying an umbrella and a bag. P. W. 9 had left some eggs in the common hall and thinking that A.1 might help himself to them, sent Eranna to put them away in a safe place. According to this witness Eranna came back and said A. 1 was in his house. After their field work, P. Ws. 8 and 9 returned home accompanied by P. W. 10 who had his mid-day meal with them. They were followed a little later by Eranna and all ate of this rice and curry which P. W. 9 had cooked early that morning. After their meal, P. W. 8 on his way to his fields began to vomjt and purge. P. W. 9 Eranna and P. W. 10 were similarly affected. P. W. 9 called out to her brother-in-law P. W. 12 who lived nearby. He sent his son P. W. 11 to fetch P. W. 8 whom he found also in great distress and making his way home. Eranna died that night. P. W. 10 who says he vomitted ten times and purged five times later went to the hospital where he stayed for 4 days.

5. On the following day at 1-30 p.m. P. W. 8 made a complaint Ex. P. 1 at the Virajpet police station to the Inspector himself P. W. 1 who happened to be there. This briefly sets out the family enmity and all that happened the preceding day. It concludes with a suspicion that as his brother Chennappa and Chennamma A. 2 were on terms of enmity with him on account of the civil suit, they must have administered poison through Kajji by which name A. 1 is called. Ex. P. 1 mentions that when they were transplanting they saw A. 1 going towards their house and that P. W. 9 then sent Eranna to the house who returned saying A. 1 was there.

6. There can be no doubt that a large quantity of arsenic had been put into this curry while the family had gone to the fields after locking up their house. A cock which had eaten up some vomit was found dead and the Inspector sent up for chemical analysis its viscera and a portion of the curry found in an earthen dish. The Chemical Examiner whose report, Ex. P. 15, was not received till several weeks later on 27-10-1949, found no arsenic in the cock but 2-2/5 grains of arsenic in the curry remnants. In the liver and kidney of Eranna, the Chemical Examiner found 1/4 grain of arsenic. The Inspector arrested A. 1 on the evening, of 3-8-1949 and on a search of Chennappa's house the following day, he seized three bottles which he sent to the Chemical Examiner. In one of them, 3/4 grains of arsenic was detected. The bottle containing this liquid has not been apparently sent back by the Chemical Examiner and it has not been exhibited.

Far more significant is the arrest of the old woman A. 2 according to the Inspector after he examined A. 1. There is no reason, whatsoever for rejecting his evidence that A. 2 took him to her plantain garden and took out concealed under the roots of a tree, a bottle M. O. 4 which according to the Chemical Examiner's report, Ex. P. 15, was found to contain no less than 15 grains of white arsenic. This is far and away the most important discovery in the case, the large quantity of arsenic found in this bottle being disclosed long after the rest of the investigation was completed. The Circle Inspector says he received the Chemical Examiner's report on 27-10-1949 and that same day laid the final charge-sheet against both the accused.

7. The main complication in this case is a confession recorded from appellant by the SubedarMagistrate Sri M. A. Uttayya (P. W. 13) on 9-8-1949 on a police requisition. In this confession, Ex. P. 34, A. 1 confessed that he brought the bottle containing tree hilling poison from Mytadi that morning, and described how he unlocked his portion of the house with keys he took from his father's pocket without his knowledge, got into P. W. 8's kitchen through the loft and put half the portion of the tree killing poison into the cooked curry in this 'chatti'. He then said he did some work in the cattle shed and went to the house of P. W. 14 where he stayed that night. Next morning he heard that Eranna was dead, and taking the poison bottle with him from the poultry pen in which he had hidden it, he returned to Mythadi and gave it to his grand-mother asking her to keep it safe. He informed her and his lather of Eranna's death. The most difficult feature of this confession is this youth's assumption of full responsibility for the poisoning. The confession concludes with these words:

'I did this act on my own accord. Neitherfather nor grand-mother were responsible forwhat I did.'

Both in the committing Magistrate's Court and in the Sessions Court. A. 1 went back completely on this confession, and wholly denied having entered his house at all that morning and having put any poison into this curry or that he took back any bottle to A. 2. A. 2 consistently denied that A. 1 gave her any bottle at all or that she produced it before the police. The learned Sessions Judge found the retracted confession to be voluntary and true and in agreement with the assessors, found A. 1 alone guilty of murder, acquitting A. 2 against whom he considered, although there was serious suspicion, the evidence to be not conclusive. When he came, however, to sentence the learned Sessions Judge took appellant's youth into consideration and also held that the evidence showed that he was a victim in the hands of A. 2 if not of his lather Chennappa and accordingly passed on him the lesser sentence.

8. There can be little doubt that A. 2's acquittal was the result of A. 1 taking full responsibility for the poisoning in the confession made before the Magistrate. There are some unsatisfactory features attaching to this confession. In the first place, it appears to have been recorded by the Magistrate on the very day A. 1 was first produced before him. Five simple questions were put to the accused, answered on a printed form in use in Coorg for the recording of confessions under Section 164, Criminal P. C. They may be strictly in sufficient compliance with Section 164, Criminal P. C., but are not in compliance with Rule 85 of the Madras Criminal Rules of Practice, which has suggested several other useful questions, which may be put to an accused to enable the Magistrate to determine whether the confession was voluntary or not. We would draw the attention of the learned Sessions Judge of Coorg and the Coorg authorities to the desirability of a printed form more in accordance with Rule 85 of the Madras Criminal Rules of Practice. In these questions, there has been a strict compliance with Section 164, Criminal P. C., and the accused was made to understand that any confession may be used in evidence against him and that he was not bound to make any confession.

We are, however, really disturbed by two circumstances surrounding the confession. Thefirst is that the Magistrate did not give A. 1 sometime for consideration after giving him a warning and take such precautions as were possible in view of his Court being a few yards from the Sub-jail entrance to keep the accused away from any possible external influences. The second circumstance is that the Magistrate closed all the doors of the Court room after the accused was produced before him. He explained in his evidence that he did so in order 'to bring courage to the accused'. On the other hand, action of this kind to an unsophisticated mind may have savoured of further confinement and intimidation. The learned Magistrate may have acted with the best of intentions to obviate any criticism-sometimes levelled at confessions that the police officer in the back ground through a door with intimidating gestures kept the confessor in the straight and narrow path of police requirements. We have very carefully considered the confession and while agreeing with the Sessions Judge, that much of it was voluntarily made and is true, we are unable to accept his full assumption of guilt as being at the time he was examined by the Magistrate freely and voluntarily made. We do not know what influences this young man was subjected to between the date of his arrest, viz., the 3rd of August and the date of his production before the Magistrate on the 9th of August when his confession was recorded.

9. Now, the conduct of A. 1 militates against his being the sole culprit in the case and against his knowledge that what he was inserting into the curry contained deadly poison in sufficient quantity really to kill more than one person. In fact, had he emptied out the contents of the whole bottle, M. O. 4 into this. curry, everybody who had partaken of it, may well have died. But we find A. 1 staying on in the village that night in the house of P. W. 14 after working that day at transplantation with P. W. 14 and some others in the field of P. W. 17. P. W. 15 the mother of P. W. 14 says she told him to go and see P. W. 8 and P. W. 9 who, she heard, were vomitting and that the appellant went out and came back saying he had gone only to the cattle shed. However this may be, there can be no doubt-that the appellant stayed in P. W. 14's house-that night and that he also went along with P. W. 14 the following morning and saw Eranna's dead body. According to the Inspector, when A. 2 produced M. O. 4 the statement she made before the 'Panchayatdars' embodied in the 'Panchayatnama' Ex. P. 6 is that A. 1 took it from the right pocket of his trousers and asked her to keep it in safe custody on the. morning of 1st August 1949. This is a statement made by an accused person to the police during investigation and is strictly and unfortunately inadmissible in evidence although it explains the production of property.

In 'Pakai.A Narayanasami v. Emperor', 18 Pat 234, their Lordships of the Privy Council approved of the view taken by a Full Bench of this Court in 'IN RE SYAMA MAHAPATRO', 55 Mad 903, that the words 'statement made by any person' in Section 162, Criminal P. C., included a statement made by an accused person, and resolved a difference of opinion on this point held by the Indian Courts, the representative judgment taking the opposite view being that of Rankin J. in 'Azimuddy v. Emperor', 54 Cal 237. Thisstatement by A. 2 when she produced M. O. 4 is of course not a confession and can in no sense be admissible as information leading to discovery under Section 27 of the Evidence Act. There can, however, be no doubt that it was A. 2 who produced this bottle M. O. 4 found later to contain 15 grains of arsenic buried under the roots of a plantain tree.

10. This bottle M. O. 4 is, as we have said, perhaps the most significant production in the case. We are satisfied that the portion of the judicial confession made by A. 1 that he took this bottle and gave it to A. 2 after pouring half of its contents into the curry is true. We are unable to reconcile his subsequent conduct with knowledge that this bottle contained a deadly poison. Had this been the case, it is most unlikely that he would have stayed in the village that night keeping in his possession this bottle with this poison without making any attempt to destroy it or throw the contents away. Further, if he knew that what he put into the curry was so potent a poison, it is most unlikely that he would have stayed in the village that night at all. There are, therefore, inherent probabilities, which favour the view that this young man had no knowledge of the real contents of the bottle and if this were the case, although what he put into the curry was in fact a deadly poison, he cannot be convicted of murder, the requisite intention to constitute which would not be proved.

11. We are in agreement with the learned Sessions Judge's view that A. 1 was a tool in the hands of A. 2 or also possibly his father Chennappa. In our opinion Chennappa should have been either examined as a witness or heshould have been put into the dock. One of the bottles found in his house contained 3/4 grain of arsenic and no investigation afterthe receipt of the Chemical Examiner's report appears to have been pursued as regards this discovery. It is in evidence that arsenic is present in large quantities in chemical preparation for the killing of trees in plantations in Coorg without the necessity of felling them, and it may be that arsenic in this way was quite easily procurable in these areas. If A. 1 was a mere tool, it may well be that he had no knowledge that what he was pouring into the curry was a deadly poison. He may well have been under some other impression.

12. Under Section 172 of the Criminal P. C., a Court may use the police diaries of cases not as evidence in the case but to aid it in such inquiry or trial.

The manner in which a case diary can beutilised to aid a Court is nowhere defined. Neither, the accused nor his agents shall be entitled to call for such diaries or to see them merely because they are referred, to by the Court; but if they are used by the police officer who made them to refresh his memory or if the Court uses them for the purpose of contradicting a witness the provisions of the Indian Evidence Act, 1872, Section 161 or Section 145, as the case may be shall apply. A statement made by an accused person recorded in a case diary is inadmissible in evidence under Section 162, Criminal P. C., even and most unfortunately if there is something in such a statement in favour of an accused; for instance, if an accused person produces an incriminating item of property connected with the case, explaining howhe got it and exculpating himself, there is no legal way of that statement being used in favour of an accused even by a defending advocate. When we expressed our doubt duringthe hearing of the appeal, as to whether the accused although we were satisfied that he put the poison into this curry had the guilty knowledge that it was poison, the learned Assistant Public Prosecutor very fairly invited our attention to the statement of the accused as recorded in the case diary made when he was first examined. Nothing there can be used as legal or admissible evidence 'against' him.

All that we are prepared to say here is something in favour of the appellant, that in his original confession to the police, far from assuming full responsibility for the poisoning and while admitting that he put the contents of the bottle into the curry, he said he was acting on the instructions of A. 2. A. defending advocate has under the rules no access to the statement of accused persons in a case diary and only to the statement of witnesses actually examined in Court for user for the purpose of contradiction under Section 162, Criminal P. C. At the actual trial, both A. 1 and A. 2 put forward a common defence completely denying all the evidence against them. We have made use of the case diary in this manner in favour of the accused as it strongly re-inforces the grave doubts that we have had on the merits of the admissible evidence as to the intention of A. 1 and his knowledge at the time he put this poison into the curry. Had Chennamma also been convicted of this murder, it would have been legally impossible for us to have utilised the case diary in the explict manner that we have done as evidence, however, much the statement of the accused recorded there may have influenced our decision. It is most regrettable in the present state of the law that even a Public Prosecutor although he may know that there is something in a statement made by an accused when examined at the commencement of great help to him, is precluded from bringing it openly to Court's notice by way of evidence. But this is the present state of the law under Section 162, Criminal P. C., and Sections 25 to 27 of the Evidence Act and until the law is changed, it is extremely difficult to utilise material in a case diary even in favour of an accused person.

12a. We do not think that the appellant can be convicted of murder. We are, however, satisfied that he did put this poison into the curry giving him the benefit of a reasonable doubt as regards knowledge that it was a considerable quantity of arsenic. We agree with the learned Sessions Judge that he was a mere tool and that the principal culprit has escaped for lack of a sufficiency of legal evidence. We think that the proper section under which the appellant should be convicted is Section 328, I. P. C., it being a reasonable inference that a person who puts into the food of another secretely any unwholesome drug intended to cause or knowing it to be likely to cause some bodily pain, disease or infirmity, that is, hurt within the meaning of Section 319, I. P. C. This section was used to convict a wife who administered aconite powder to her husband in 'IN RE KURUBA CHINNA HANUMAKKA', ILR (1943) Mad 679. Section 328, I P. C., is, we consider, the appropriate section under which this young appellant, can in the circumstances, be fairly convicted, tool that he was as the learned SessionsJudge rightly in our opinion found him to be.

The appellant has been continuously in jail since 24-3-1950 the date of his conviction, the case having undergone a regrettable delay before in coming up for hearing owing to Coorg having comparatively recently come under the jurisdiction of this Court. We find the appellant guilty under Section 328, I. P. C., and sentence him to 20 months rigorous imprisonment which would approximately be the period he would have undergone by the time he is released.

Somasundaram, J.

13. I agree with the Judgment of my learned brother. So far as Sections 25 to 27 of the Indian Evidence Act are concerned, I have already stated in another case, that they only prohibit the use of the confession against the accused and that there is no prohibition of their use in favour of the accused. But as regards Section 162, Criminal P. C., it prohibits the use of the statement made by any person (which includes the statement of the accused) for any purpose. There is, therefore, a prohibition to use the statement of the accused if made in the course of investigation eveti if it is in favour of the accused. This section needs to be amended so as to enable the statements of the accused to be used if they are in their favour particularly if they happen to be in explanation of the recovery of incriminating articles from their possession.